30. In our view, however, this "highly inclusive"
approach has led to ambiguous terminology and unclear thresholds
and triggers, raising concerns about the Bill's potential for
misuse. In Part 1, which only enables government to issue regulations
for the preparation of contingency plans, a lack of clarity about
what constitutes an emergency may raise issues about resources
and respective responsibilities of local Responders but is otherwise
the less serious of the two outcomes. It does not separately prescribe
action to be taken in crisis situations. Under Part 2, however,
which would allow Ministers to declare a state of emergency and
assume extensive and potentially draconian powers, the possible
consequences of an insufficiently clear definition are of far
greater concern.

31. As currently drafted, the definition of an emergency
could include a wide range of events or situations. The Joint
Committee on Human Rights' report has already identified a number
of situations where emergency powers under this Bill could be
deployed, including strikes, political protests, computer hacking,
a campaign against banking practices or protests against genetically
modified crops.[17] Witnesses
and responses to the Cabinet Office consultation have commented
that the definition is so wide as to encompass events which are
already routinely dealt with by emergency services.

"The definition as given in the Bill would
include a number of events to which the emergency services respond
every day".[18]

"The definition as it stands does not include
an element of scale and could therefore apply to a relatively
minor road traffic accident or small fire".[19]

"Under the current definition an emergency
could be declared following the destruction of one property".[20]

32. We concur with the conclusion of
the House of Lords Select Committee on the Constitution that the
current definition is unduly broad.[21]

34. A number of consultation responses and the Defence
Committee's report[23]
echo our own concern that the triple lock is not readily identifiable
within the draft Bill and that Ministers are not statutorily obliged
to assess a situation against the triple lock criteria before
declaring an emergency.[24]

35. The Government has told us that the triple lock
is reflected in various clauses in Part 2, including clauses 17,
18, 19 and 21.[25] Given
the confused and hurried circumstances in which an emergency is
likely to be declared, when the only guidance to the Government
of the day may be the legislation itself, it is vital that safeguards
against misuse are made as clear on the face of the Bill as possible.
We do not believe that scattering the three issues across the
Bill gives it the clarity, visibility or importance necessary
for a major safeguard against misuse.

36. In the light of the above, we welcome the Minister's
statement when he gave evidence on 16 October. Although he declared
himself satisfied that the triple lock was as robust in its present
form as it would be in a single clause, he nevertheless agreed:

"there is no reason why the triple lock
cannot be gathered together from the various clauses of the draft
Bill and presented in a single clause and if the Committee were
so minded to recommend it, that would be something that would
weigh heavily in the Government's deliberations about translating
this from a draft Bill into a Bill that would be introduced in
due course".[26]

37. We recommend that the triple
lock should be explicitly stated in a single or adjoining clauses
on the face of the Bill, rather than mentioned in discrete sections.
It should be a statutory condition that the triple lock test is
applied before a declaration of emergency can be made.

38. We believe that the triple lock tests, as drafted,
are insufficiently objective or clear to create a robust safeguard.
Clauses 17 and 21 refer to the seriousness of a threat or effect,
clauses 18 and 19 require that a proclamation/declaration is necessary,
and clause 21(4)(f) contains the principle of proportionality
in geographic terms. We consider these tests to be defective in
the following respects:

There is no express requirement
of objectivity in any of the tests. The absence of the word "reasonableness"
does not rule out review, for example, by the courts. However,
it would signal a more rigorous standard of the exercise of powers
and ex post facto review if it were to be included. We
do not consider it to be acceptable that the existence of these
conditions is exclusively for the Government to discern at will.[27]

The term "necessity" is left unexplained,
except in clause 21(4)(e) where it is specified that the use of
legal powers and resources normally available without the invocation
of the Civil Contingencies Bill will not be sufficient to deal
effectively with the emergency. These notions should apply to
other appropriate clauses in the Bill.

Proportionality is explained in purely geographical
terms. However, we consider that proportionality should also apply
to the exercise of powers at three key points: when an emergency
is declared, when the regulations are issued and when the regulations
are applied. We are concerned about a 'one size fits all' approach,
which might see powers triggered that are not proportionate to
the emergency occurring. The notion of proportionality has been
inserted into other recent legislation dealing with the rights
of the individual, including the Anti-terrorism, Crime and Security
Act 2001[28] and the
Regulation of Investigatory Powers Act 2000.[29]

39. We recommend that the triple lock
include a test which measures whether the use of powers is proportionate
to the nature of the emergency, as well as providing for geographical
proportionality. The test of "reasonableness" should
be inserted into the triple lock. The "seriousness"
test (see paragraph 58) should be made more robust, given that
"serious" is not defined anywhere in the Bill. The opening
phrase in clause 21(4), "without prejudice to the generality
of subsection (1)(a)" should be removed.[30]
It is confusing and can only undermine what is otherwise the clear
intent of clause 21(4). Unless these recommendations are followed,
there is a substantial risk that the idea of the triple lock in
the Consultation Document[31]
will remain little more than rhetoric.[32]

40. Additionally, as drafted, the triple lock seems
to act as a mechanism to 'weed out' non-emergency situations which
the overly broad definition of an emergency has inadvertently
caught. We recognise its potential value as an additional threshold
that must be surmounted before a declaration of emergency can
be made, but the triple lock is not a substitute for an undesirably
loose definition of emergency.

41. The Minister in charge of the Bill told us that
the Government was considering putting a more explicit trigger
on the face of the Bill. He suggested three possibilities: including
a proportionate scale of emergency, "where a threat to a
portion of the community or the community itself is deemed to
be one of the criteria having to be met"; better defining
the notion of serious; or an additional test that could be added
to the Bill, perhaps "linked to the exercise of Responders
in circumstances of emergency".[33]

42. We welcome this response. While
we acknowledge the concept of a triple lock as an additional threshold,
it cannot replace the need for a clear, objective and proportionate
definition of an emergency.

44. We therefore recommend that
the term "human welfare" be explicitly incorporated
into the definition of emergency in both Parts of the Bill.

45. Under the Emergency Powers Act 1920, an emergency
is defined as an event which has or may interfere with the supply
and distribution of food, water, fuel, light or transportation,
thereby depriving all or part of the community of the essentials
of life.[35] The Bill
significantly widens this definition; a threat to human welfare
constitutes but one of many components, and is not a prerequisite
for all eventualities. Threats to the environment, to political,
administrative or economic stability, or to the security of the
UK can be regarded as an event justifying the deployment of emergency
powers, whether or not they represent a threat to the people.

46. Civil rights experts have told us that this definition
strays too far from the core basis of what an emergency is:

"There may be room for slight improvement
on the 1920 definition, but not the extended broad definition
of public emergency that is offered in this Bill, which does not
cut to the heart of the kind of emergency, the basic threat to
existence for significant numbers of people should be the only
scenario that is sufficient for ousting parliamentary jurisdiction".[36]

"We are not defending the language of the
1920 Act as perfect, but the core concept is one of ensuring public
safety and physical well being".[37]

47. We consider that the core of an emergency, particularly
one meriting substantial emergency powers, is the threat to human
welfare. We cannot envisage justifying the use of potentially
draconian emergency powers if there was no demonstrable threat
to human welfare. Including this as a key component of the definition
of emergency would further ensure that the use of emergency powers
would be limited to protecting the welfare of the population,
rather than the welfare of the state. This issue is explored further
in paragraph 49.

48. We recommend that the definition
of an emergency is re-drafted to reflect that an emergency is
a situation which presents a threat to human welfare.

"political, economic or security issues are
an unnecessary duplication and are simply one of the many events
or situations which would require an emergency to be declared
under the first two criteria of the definition due to the disruption
to human welfare or the environment".[39]

51. While we do not envisage that the present Government,
or any political party represented in Parliament, plans to trigger
emergency powers in the event of a threat to its own existence,
it is imperative in this Bill, as in other proposed enabling legislation,
that such hostages to fortune should not be left available for
deployment against future generations.

52. We have grave reservations about
allowing enabling legislation to contain exploitable opportunities
that could give the government of the day the power to protect
its own existence when there may be no other threat to human welfare.
We recommend that this clause should only remain in the Bill if
it can be demonstrated that situations occurring under it will
also present a threat to human welfare or safety. It should only
cover those threats to human welfare caused by disruption to essential
services.

54. While education is an important
service, we can see no reason why a threat to educational services
should, of itself, warrant the use of extensive emergency powers.
We therefore recommend that educational services should be removed
from clauses 1(2)(h) and 17(2)(h).

56. This seems to be at odds with the approach in
other legislation. The definition of 'terrorism' in the Terrorism
Act 2000 requires a threat of action involving serious harm, rather
than a serious threat of action involving harm.[43]
Slightly to our surprise, the Cabinet Office told us that parliamentary
counsel has advised "quite clearly that the natural meaning
of the term serious threat to human welfare is a credible threat
with serious consequences".[44]

57. In the interests of clarity,
we recommend that the Bill makes explicit that the test of the
existence of an emergency is judged according to the seriousness
of its potential or actual consequences to human welfare.

"I would definitely like to see some sort
of elucidation of what is implied by "a serious threat".
That can mean many different things to different people".[46]

"The term "serious threat" is
woolly and therefore guidance is necessary to determine what would
trigger an event that was considered to be a "serious threat".
Without guidance or a stronger definition within the Bill, there
may be inconsistency of approach across the country".[47]

59. Dealing with Disaster, the Cabinet Office's
guidance to emergency planners and local Responders, defines a
major emergency as an event or circumstance " on such
a scale that effects cannot be dealt with by the emergency services,
local authorities and other organisations as part of their normal
day to day activities".[48]
There has been wide support in consultation responses for including
this definition in the Bill or using it, in Part 1, to replace
the existing definition:

"The simple, single paragraph definition
from Dealing with Disaster is perfectly adequate. We can
think of no situation, listed in the bill's definition, which
it could not be deemed to cover".[49]

"The definition contained in Dealing
with Disaster gives a far clearer trigger for a major emergency".[50]

60. The Minister told us that the drawback of this
definition was that it was a "relative notion of disaster",
which could be deemed to be conditional, according to the capacity
of the emergency services in the area. He did however, signal
his willingness to consider defining the term "serious".[51]

61. We would suggest that emergencies are, by their
very nature, relative. One reason an incident may develop into
a crisis is the inability of existing capabilities to contain
it. We do not propose that the definition in Dealing with Disaster
should form the sole basis of a definition of an emergency,
but it is an example of the sort of threshold that should be crossed
before the need for special legislation is considered.

62. We recommend that the Dealing
with Disaster definition of a 'major emergency' be
inserted into the Bill as one definition of the term 'serious'.

"From an emergency planning perspective
I would like to see [the issue of stability] more closely tied
to issues of human welfare so that we do not get drawn too far
into the political sphere".[53]

64. In response to our request for a definition of
"stability", the Minister told us:

"The inclusion of Political, Economic and
Administrative Stability is indicative of our desire to draw up
a definition that reflects the full range of emergencies we might
face in the future - an inherently unpredictable element. This
comprehensive approach was endorsed by consultation.

This and other elements of the definition will
be limited once we have a threshold in place".[54]

65. We recommend that the term "stability"
is explicitly defined within the Bill, with reference to our recommendation
that the core of an emergency is the threat to human welfare.

67. It is our concern that the term "in particular"
leaves the definition of emergency entirely open-ended, at the
mercy of a range of interpretations, and therefore potentially
open to abuse. According to this wording, a Minister can determine
the criteria by which an emergency is judged to exist, and accrue
significant emergency powers accordingly. Given that the definition
of human welfare is limited in Part 1, it is surprising that it
is left open-ended in Part 2, where the more serious powers can
be triggered.

68. The Minister has told us that "this is not
deemed to be an exhaustive list, but rather is an illustrative
example of what we were endeavouring to do which was, where possible,
to be explicit with people as to the range of possible reach of
the legislation as drafted".[57]
In reply to further questioning he said "a balance has to
be struck but there are very clear limits on the powers
of the Secretary of State or government acting under the draft
legislation as presently drafted, the foundation of that of course
being the triple lock."[58]

69. We are not convinced that the
definition of emergency should incorporate such a degree of latitude,
or that the safeguards are robust enough to protect against possible
misuse. We therefore recommend that the words "in particular"
be removed from clause 17(2).

70. Under the draft Bill, emergency powers can be
triggered by a threat to "another essential commodity"
and "other essential services". These terms are not
defined in the draft Bill and seem dependent on Ministerial interpretation,
to be determined at an unspecified date, potentially far in the
future.

71. In his written response, the Minister said:

"The use of 'essential' in the draft Bill
should be taken to have its usual meaning - necessary.

It is difficult to predict what will be essential
in the future, just as there are essential commodities today which
would not have been judged to be so in the past. The 1920 Act
was reflective of its time - for example there is no reference
to computers or electronic communications. Ultimately, the inclusion
of this language is intended to 'future-proof' the legislation."[59]

72. While we recognise that the Government
wishes to leave the definition wide enough to "cover the
full spectrum of current and future events and situations",[60]
we suggest that this degree of latitude leaves the Bill wide open
to possible misuse. The phrases "another essential commodity"
and "other essential services" should be removed from
the Bill. Any amendments to the Bill which may become necessary
in the event of future, unforeseen events, should be enacted through
proper parliamentary procedure, not left to the discretion of
the Government of the day.

"Firstly, we believe disruption
of BT's network on its own rather than as a by-product of a wider
serious incident which involves several Category 1 and 2 Responders
is something that we have the expertise and the process to deal
with as BT, regardless of the causes of disruption Government
Responders are unlikely to have the required knowledge, skills
or expertise to direct the details of a telecommunications recovery".[63]

[The definition] "introduces
a parallel and potentially conflicting set of requirements to
those already governing electricity distribution network operators,
hindering consistency via the possibility of fragmented debates.
It significantly exacerbates the potential problems on ambiguity
of roles and duties of local authorities".[64]

74. We have heard that the utility companies have
an existing statutory duty to undertake emergency planning for
their areas:

"Electricity distribution network operators
are already subject to extensive statutory and license requirements
which deal with contingency planning, network resilience and response
to failures of electricity supplies. These are common nationally
set requirements, on which the DNOs[65]
are regulated, and are required to adhere to".[66]

"United Utilities sees little advantage
in being a Category 1 Responder. In both the water and electricity
sectors, the regulatory environments require us to have the contingency
plans and do the risk assessments already that the requirements
under the draft Bill and the emphasis on Category 1 Responders'
duties would bring. So a lot of that proposed Category 1 accountability
exists already within those two sectors".[67]

"BT have got detailed continuity plans which
go from sustaining its cashflow down to a major mobile exchange
capability to restore a smoking hole scenario".[68]

75. We recommend that the existing
statutory responsibilities of the utility organisations are cross-referenced
in accompanying regulations, to ensure that there is no ambiguity
or overlap in emergency responses.

"This definition of oil would appear to
be unnecessarily restrictive as it would only apply to those refined
products that are used as fuel in large power plants...A broader
definition to cover all eventualities would be provided by replacing
'fuel oils' with 'oil' or 'oil and its derivatives'".[71]

79. A similar definition to this is used in other
legislation, including the Merchant Shipping Act 1995.[72]

80. There are also concerns about the definition
of water, including threats from offshore events. For example,
Gloucestershire County Council Fire and Rescue Service recommended
that, "the definition of the word 'water' needs clarification
because of the implications relating to local authority and shoreline
clean up".[73] Bristol
City Council was concerned that "'water' should include
riverine, estuarial and seawater".[74]

81. We recommend that the Cabinet
Office consider making clearer the definition of oil and water,
in the light of the concerns that the Committee has heard.